Pre-Gaming the Sotomayor Confirmation Hearings

So Second Circuit Judge Sonia Sotomayor is President Obama’s pick to replace Justice David Souter — and at Obama’s press conference, Sotomayor was (understandably) beaming.

That said, before she sends the measurements for her robe down to One First St., N.E., she’s got to go through one major unpleasantry — a little thing called a Senate confirmation hearing. We don’t envy Sotomayor’s having to go through that — Senate confirmation hearings can be brutal. (See, e.g., Bork, Thomas, Alito).

To find out how these might play out for Sotomayor, we checked in with Arthur Hellman an expert on the federal judiciary at the University of Pittsburgh Law School of Law and author of two casebooks — one on Federal Courts and the other on the First Amendment.

Hi Professor Hellman. Thanks for taking the time. First things first: It seems to us that one major thing playing in Sotomayor’s favor is the makeup of the Senate, which currently has nearly 60 Democrats. Can Senate Republicans do anything to block this nomination?

I don’t think so. I don’t think there’s much doubt about the outcome, unless there’s some time bomb buried very deeply buried in her past that has yet to be unearthed, or unless she makes some horrific blunder at the hearing. It’s hard for me to imagine she won’t be won’t be confirmed, and I think the vote will probably be by a pretty substantial margin.

Well, given that, is there anything Republicans can accomplish during the hearings?

What we don’t know yet is how much effort Republicans will put into raising questions about her. Of course, there are political considerations; there might be a risk for Republicans in appearing to go too hard on a Hispanic nominee. At the same time, it’s an extremely important position, so it’s legitimate to ask probing questions, but the questions have to be relevant and respectful.

Having said that, I think if the Republicans focus less on the short term and more on the long term, they might be able to accomplish something meaningful. That is, they can present to the public their thoughts on what they think the role of a Supreme Court justice should be. They’ll probably urge a modest view of the Supreme Court — and the federal courts more generally — that judges and justices should not legislate from the bench or go out of their way to make policy, etc.

What, exactly, would be the point of that?

It could signal to President Obama what they’d like to see in the next justice by setting up some parameters. The Republicans might put down some markers that would give Obama pause about moving in a certain direction if and when he gets to make another selection.

But if another vacancy opens up before the next election, he’ll presumably have the same support in the Senate, right?

It’s true, but of course the amount of support will largely depend on who it is, and perhaps also on whether the president still has high approval ratings generally.

Judge Sotomayor made some controversial remarks at a 2005 panel at Duke University. She told students that the federal courts of appeals are “where policy is made.” These comments are almost guaranteed to come up at the hearings, right?

I’d expect that Senate Republicans will focus carefully on this, but I also expect that she’ll have an answer that will at least sound reassuring.

It’s interesting, though. During the last two confirmation hearings — for Justices Roberts and Alito — Democrats were on the other side. The Democrats asked a lot of questions about Roe v. Wade — whether the nominee would overturn Roe if and when he were on the Court.

I think that for Sotomayor’s hearings, you’re going to hear a lot about same-sex marriage; whether she’d find support in the Constitution for it.

So that’s going to be the big issue, eh?

I think so. I think the Republicans will do what the Democrats did with Alito and Roberts on abortion, try to get her to say something that will signal how she’d rule on the same-sex marriage issue. She’ll likely say in response that she can’t comment on an issue that it’s likely to come before the Court. She’ll murmur some soothing generalities to try to reassure the public and particularly moderate Republicans.

Sounds like the Senate Republicans should keep their expectations low?

I think so. I wonder just how aggressive they’ll be in questioning her. I think they run the risk of coming across as too aggressive, partly because she’s a Hispanic and partly because she’s a woman. They don’t want it to appear like they’re picking on her. With that in mind, I’d expect not to see the kinds of questions we saw of Alito and Roberts.

Do you remember what the tone of the hearings was like with Justice Ginsburg?

She was treated pretty gently, if I remember correctly.

Last question. Sen. Jeff Sessions (R-AL) recently took over as the ranking Republican on the Senate Judiciary Committee. Do you think the hearings will be different with Sessions at the helm than they would have been with Arlen Specter (D-PA) leading the way?

Jeff Sessions is of a different political stripe than is Specter — he’s more conservative. But remember, Sessions was once nominated for a federal judgeship, and Democrats blocked it. It’s hard to believe that that experience wouldn’t be at least in the back of his mind — and it could lead him to treat her with a good deal of respect. I’d expect him to be courteous, but to push as hard as he can to at least highlight some of the issues he views as potentially probematic.

That said, Patrick Leahy (D-VT) will be controlling the time, so Sessions will have to work within the framework Leahy sets.

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